Summary Description: 

Unfair dismissal claim rejected even though the claimant did not have up-to-date policies.  The relevant provisions were the same so the respondent’s failing had no consequences in this respect.  

Background: 

The claimant began work for the respondent in 2005 as a rope access technician working on a platform in the North Sea.   The claimant was dismissed in September 2019.   

The dismissal arose out of a ‘Golden Rule Violation’ where a Level 1 technician under the claimant’s supervision was seen climbing with no anchor points.  As there was no attachment when working at height the report was prepared and sent to the claimant.  An investigation concluded that the claimant should face disciplinary action for golden rule violations. However, during the process it became clear that the claimant did not have access to the updated policy documents through the system but rather was relying upon older documentation.  The claimant, after the process had been completed, was dismissed for his breach of the Golden Rules of Compliance.  He appealed internally and it was rejected. He brought a claim for unfair dismissal.  

Outcome: 

The Tribunal, at first instance, rejected the claim.  They stated that whilst the claimant was using the 2013 Rope Access Procedure and that it had been updated in 2015 and 2017 the relevant provisions had not been amended.   As a Level 3 technician the claimant was required to carry out task-based risk assessments to ensure that the risks were as low as practicable.  

The claimant appealed to the EAT arguing that the Tribunal had substituted its own view rather than the reasoning applied in the investigation/disciplinary process.   However, the Tribunal judgment stated that it was for the respondent to conclude that the claimant was at fault.  There was nothing else in that section relating to the Tribunal’s view. The second ground was on the basis of fairness considering that it was the most recent policy which he had no access to that was used.  However, the EAT held that that failure had no consequences and would not allow for an appeal on that ground.   

Practical Guidance for Employers: 

There can be technicalities and processes that must be covered when going through a disciplinary meeting.  In this one of the issues was the availability of the most up-to-date policies which may seem to cause alarm bells for those of us (lawyers and HR professionals alike) reading the case.  However, the Tribunal and EAT came to a sensible conclusion here looking at the substance and whether there had been any change to the relevant provisions and as there had not then the decision could stand.   However, employers should ensure that where there are updated policies that there is due notification given and the mechanisms available to employees to access those policies.  

The full case can be viewed here:
https://assets.publishing.service.gov.uk/media/663e511ebd01f5ed32793960/Mr_Craig_Waites_v_Bilfinger_Salamis_UK_Ltd__2024__EAT_74.pdf