Employee’s admissions and dismissal

CRO Ports London Ltd v Wiltshire [EAT] | 2015

Mr Wiltshire was a Supervisor. He had been employed since 1991 and had a previously unblemished disciplinary record.

In January 2013 he was called upon to resolve an issue with lifting a container. A manager suggested he pick up “heavy duty twist locks”. He had not been aware that CRO had these. He arrived on site and the team leader was attempting to resolve the problem by using a small piece of wood to help twist the locking pin in place. This was the approach Mr Wiltshire had used in the past. A test lift was done and Mr Wiltshire allowed the lift to continue. The container was not locked properly and it fell from around 20 feet. It was badly damaged and could have caused a fatality.

Mr Wiltshire believed the widespread use of the practice and his unblemished record would result in a warning. He therefore took full responsibility but made the point that the practice was widespread and was effectively sanctioned. Time pressure was also a factor.

The disciplinary hearing took place the day after his mother’s funeral and a few days before major knee surgery. He did not ask for the hearing to be postponed.

The disciplinary officer concluded that Mr Wiltshire had:

• admitted and condoned the practice and
• failed to report or stop it.

He had no option but to dismiss him for gross misconduct.

Mr Wiltshire appealed and his appeal was unsuccessful. He claimed unfair and wrongful dismissal.

The tribunal upheld the claims. It decided that CRO had not undertaken a reasonable investigation. It felt that CRO was scape-goating him for their failure to address the issue. CRO appealed.

The EAT allowed the appeal.

Mr Wiltshire admitted knowledge of the practice and doing nothing about it, knowing it was a serious breach of health and safety rules. He had also highlighted custom and practice. The EAT considered that was a question of whether there was a conflict of evidence which may reasonably require further investigation. It also could not be sure that all relevant matters were taken into account.

The case is to be heard by a new employment tribunal in due course.

It is very easy for employers to assume, in light of an admission, that no investigation needs to be undertaken. In some cases this will be true but not in all, as is evidenced here. Even with an admission there may still be questions that need to be investigated and considered before a fair decision can be reached.