Claimant v Openreach Limited
Outcome
Individual claims
The tribunal found the dismissal unfair due to an unreasonable investigation and procedural defects. The respondent failed to investigate the claimant's allegations about witness bias, the investigating officer gave misleading assurances about outcome, and key evidence (witness statement and GDU data) was not disclosed to the claimant before the disciplinary hearing. The failure to warn the claimant that dismissal was a potential outcome compounded these defects.
Facts
The claimant, a Service Delivery Engineer with around 2 years' service, had a 'Carer's Passport' allowing him to work closer to home due to caring responsibilities for his seriously ill mother. On 30 May 2023, he was working in an underground hole near a petrol station. He failed to use a roller bar (a safety tool to prevent sparks) and did not keep his gas detection unit (GDU) properly positioned while working, though it was switched on. His Patch Manager, John McGown, arrived at the site, observed the failings, and reported them. The claimant was suspended. The investigating officer (the claimant's line manager, David Rafferty) told the claimant during the fact-find that if he showed remorse and his GDU was on, the worst outcome would be a final written warning. The claimant was dismissed for gross misconduct after a disciplinary hearing. Key evidence (a witness statement and GDU data) was not disclosed to him before the hearing, and he was not warned dismissal was a possible outcome.
Decision
The tribunal found the dismissal substantively unfair due to an unreasonable investigation and serious procedural defects: the investigator failed to investigate the claimant's allegations of witness bias, gave misleading assurances about outcome, and did not disclose key evidence. The respondent also failed to warn the claimant that dismissal was a potential outcome. However, the tribunal found an 80% Polkey reduction (the claimant would likely have been fairly dismissed anyway) and a 90% contributory fault reduction (his conduct was culpable and caused the dismissal). The total award was £296.66.
Practical note
Even where an employee's conduct is serious and dismissal would likely have been fair, procedural defects (failure to investigate bias allegations, misleading the employee about likely outcome, non-disclosure of key evidence) can render a dismissal unfair — though substantial Polkey and contributory fault reductions may drastically reduce the award.
Award breakdown
Adjustments
80% chance the claimant would have been fairly dismissed anyway following a reasonable procedure. The tribunal found the conduct (failing to use roller bar and improperly positioning gas detection unit) was sufficiently serious that dismissal would have fallen within the band of reasonable responses even after a fair investigation.
The claimant's culpable conduct — failing to use the roller bar and failing to ensure his gas detection unit remained properly positioned when working in a hole near a petrol station — was blameworthy and significantly caused or contributed to his dismissal, risking his own and public safety.
Legal authorities cited
Statutes
Case details
- Case number
- 4105583/2023
- Decision date
- 13 May 2024
- Hearing type
- full merits
- Hearing days
- 4
- Classification
- contested
Respondent
- Sector
- telecoms
- Represented
- Yes
- Rep type
- solicitor
Employment details
- Role
- Service Delivery Engineer
- Service
- 2 years
Claimant representation
- Represented
- No