Rare reinstatement ruling at Employment Tribunal

Published: 12th September 2018

Rare reinstatement ruling and £22,805 award from Employment Tribunal for tanker driver who spilled fuel on a forecourt.

 

XPO Bulk UK tanker driver, Mr D Nolan an employee with 5 years service, was delivering fuel to Tesco’s Chichester store on a dark and windy evening in December 2015.  Alarms sounded during the process of filling two fuel pots which Mr Nolan investigated but he could find no fault in his driver controlled delivery box. 

Whilst completing paper work, he realised a potential mistake on his part regarding ullage (the amount of space left in a tank) at which point it was discovered that fuel had leaked onto the forecourt.  The Fire Brigade were called and ensured that the clean up had been satisfactorily dealt with.

Mr Nolan attended a disciplinary hearing which found he had brought the company into disrepute.  When his appeal against the dismissal failed he instigated Tribunal proceedings.

While the Tribunal regarded Mr Nolan’s conduct as “culpable and blameworthy” and consequently made a 15% deduction on the award, it ruled that his dismissal was “substantively unfair as he would not have been dismissed by a reasonable employer for the misreading of the ullage”. 

The Tribunal’s award of £22,805 for loss of earnings, pension and expenses while looking for other employment and was uplifted by 5% because of the employer’s failure to follow the ACAS code of practice.  This case is rare because the Tribunal also ordered Mr Nolan’s reinstatement, which is highly unusual. 

A business that refuses to reinstate a dismissed worker if ordered would face financial penalty and if they had employed someone else in the role, the Tribunal would then consider if the person could be employed in a different role.

In these circumstances, we would recommend that the reinstated worker should be treated as a new starter with their slate wiped clean.  Additionally, line managers should also be guided to treat the employee positively and not subject them to unfavourable treatment for having brought a claim.

Click the link for the Tribunal's full ruling:  https://assets.publishing.service.gov.uk/media/5b92513840f0b65560e9b71e/Mr_D_Nolan_v_XPO_Bulk_UK_Ltd_32002502016_Full.pdf

 

For advice and support on disciplinary or any other HR issue, contact one of the team at Pennine Business Partners on 01484 841776