Claimant v Menzies Distribution Solutions Limited
Outcome
Individual claims
The tribunal found the dismissal procedurally unfair because the respondent failed to hold an appeal within a reasonable period as required by their own policy and the ACAS Code. The appeal, lodged on 24 April 2024, was not held until 18 July 2024, and only after the ET1 was served. However, the dismissal was substantively fair — the claimant deliberately removed his tachograph card while driving, constituting gross misconduct. Had a fair procedure been followed, the claimant would have been dismissed anyway (100% Polkey reduction), and his culpable conduct caused the dismissal (100% contributory fault reduction). The basic award was also reduced to zero for just and equitable reasons.
Facts
The claimant, a HGV driver employed since July 2021, was dismissed for gross misconduct after deliberately removing his tachograph card and continuing to drive on 13-14 March 2024. He admitted the conduct, explaining he panicked because a road diversion meant he would be late home to care for his wife and feared his son would face disciplinary action if late for work. The respondent conducted an investigation and disciplinary hearing, dismissing him on 9 April 2024. The claimant appealed on 24 April, raising procedural failings and disparity of treatment. The respondent failed to hold the appeal until 18 July, only after the ET1 was served, by which time the claimant declined to attend.
Decision
The tribunal found the dismissal procedurally unfair due to the respondent's failure to hold an appeal within a reasonable period as required by their own policy and the ACAS Code. However, the tribunal concluded that even with a fair procedure, the claimant would have been dismissed (100% Polkey reduction), and his deliberate, culpable conduct in removing the tachograph card caused the dismissal (100% contributory fault reduction). The basic award was reduced to zero on just and equitable grounds. Total award: £0.
Practical note
A finding of procedural unfairness (breach of right to appeal) may still result in zero compensation where Polkey and contributory conduct reductions are both 100%, reflecting that the employee would have been dismissed anyway and caused the dismissal by culpable conduct.
Adjustments
100% chance claimant would have been dismissed even if a fair appeal procedure had been followed. The claimant admitted the conduct; the offence was grave; dismissal fell within the band of reasonable responses.
The claimant deliberately removed his tachograph card and continued driving, knowing he should not do so and the potential consequences. This culpable and blameworthy conduct caused the dismissal.
Legal authorities cited
Statutes
Case details
- Case number
- 8000912/2024
- Decision date
- 20 February 2025
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- transport
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- HGV class 2 lorry driver
- Salary band
- £25,000–£30,000
- Service
- 3 years
Claimant representation
- Represented
- No