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Reinstatement Order

In a rare case, a Tribunal has ordered that a tanker driver be given his job back after he was dismissed for an accidental fuel spillage.

Mr D Nolan v XPO Bulk UK Limited

Mr Nolan was employed as an LGV Category C & E driver for XPO Bulk UK Limited. His job entailed delivering fuel to petrol or filling stations.

On 8 December 2015 Mr Nolan delivered fuel to Tesco Chichester. It was dark and windy. Upon arrival he went through his usual checks before starting to transfer fuel into two tanks. Shortly after starting the second tank an alarm sounded. Mr Nolan went to investigate the alarm but did not find any warning lights on the DCD (Driver Controlled Delivery) box. He checked and discovered an airlock in the delivery hose. Mr Nolan fixed this blockage and the flow started again. The alarm sounded once more a few minutes later. Mr Nolan returned to the DCD box and again there was no warning indicator to suggest anything was wrong. Mr Nolan shut off the alarm and went to check his paperwork. At that point he noticed that he had misread the required delivery volume and went to press the emergency stop button. Unfortunately, it was too late and a member of the garage staff approached the claimant to say there was fuel on the forecourt. Mr Nolan instructed the Tesco employee to call the Fire Brigade which was standard procedure where there was a spillage of fuel. He also reported this matter to his employer. The Fire Brigade attended and the spillage was contained with little effort.

The Tesco employee informed Mr Nolan that the tank he was delivering fuel to was faulty. Mr Nolan had not been told this by his employer prior to delivery. Tesco made no complaints about Mr Nolan’s management of the incident.

Mr Nolan was suspended pending an investigation. Following the investigation, the investigating manager said that it was no more than ‘a slap on the wrists’ and lifted Mr Nolan’s suspension. However, another manager immediately re-suspended him, overriding the initial decision. Mr Nolan was issued with a Final Written Warning for one year. However, he already had a current 6-month written warning on his file and so was dismissed with notice.

Mr Nolan appealed against his dismissal. An appeal hearing went ahead and was adjourned so that the appeal hearer could make enquiries. It was never reconvened and no outcome was delivered.

Mr Nolan brought claims for unfair dismissal, unlawful deduction from wages and breach of contract.

Decision

The Employment Tribunal upheld Mr Nolan’s claims due to significant flaws in the investigation and disciplinary process by XPO UK Limited.

The Tribunal criticised the various managers that undertook the investigation and disciplinary meetings for their flawed and ‘closed minded’ approach. The Tribunal believed that they did not engage with and refused to accept Mr Nolan’s credible responses to the incident because they wanted the conclusion of Mr Nolan’s dismissal. They relied on irrelevant previous misdemeanours as they were determined that Mr Nolan ‘needed to pay’ for the spillage error.

The Tribunal also brought into question the second suspension of Mr Nolan after he had been reinstated following the initial investigation meeting. Mr Nolan had attended a training course following the incident and could therefore see no explanation for re-suspension.

Although the Tribunal acknowledged that Mr Nolan was blameworthy in not noting the clear warning on the printout that caused the spillage (albeit relatively small) it decided that dismissal was “substantively unfair as he would not have been dismissed by a reasonable employer for the misreading”. The Tribunal ordered he be reinstated to his previous role, as per Mr Nolan’s request and awarded Mr Nolan £22,805.18 in loss of earnings, loss of pension and expenses while looking for alternative employment.

Comment 

Reinstatement decisions are rare in the Employment Tribunal (less than 1% of cases), simply because employees very rarely want to return to work for the same employer as they may harbour feelings of mistrust and resentment if they have been unfairly dismissed. However, this outcome remains a possibility in unfair dismissal claims.

A Tribunal has the ability to order an employer either to take an employee back on their old terms or to take back an ex-employee in a comparable job on such terms as the Tribunal decides. When reaching this decision a Tribunal takes into account the wishes of the employee, the practicalities for the employer, and whether the employee contributed to the dismissal. Ultimately, the tribunal cannot force an employer to reinstate or re-engage an employee, but the repercussions for failing to do so are financial. In addition to any basic award and compensation due to the employee, the Tribunal can award between 26 and 52 weeks’ pay (capped at the statutory maximum weekly pay from time to time).

If you have any HR queries, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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