The employee was a warehouse worker for a biscuit manufacturer. His role was to collect pallets in the warehouse and stack and label them. Whilst working a shift, the employee broke his ankle. He reported to a manager that the accident happened when he had fallen over a pallet in the warehouse. Immediately prior to being taken to hospital, the employee gave a statement regarding the accident, in which he explained that when he had laid a pallet down, he had tried to step over it and went over on his ankle.
The employer also obtained statements from other employees. One of the statements given by an eye witness contradicted the employee’s statement, as it stated that the employee had stepped onto the pallet, rather than over it. The other statements stated the employee had told them he had fallen over a pallet. The CCTV footage of the incident showed the employee stepping onto the pallet and stretching up to reach a radio, before slipping off the pallet with some force.
The employer decided that a health and safety investigation should be carried out because four of the statements which had been taken gave an impression that the employee had stepped over a pallet i.e. that the accident may not have been due to the employee’s own negligence. As part of this investigation, the employee was questioned again as to how the accident had occurred. On this occasion, the employee recalled that he hurt his ankle when stepping down off the upturned pallet after adjusting the radio. On reinvestigation, he also stated that he could not recall falling over a pallet as originally stated and as he had incorrectly thought at the time. He also confirmed that he had been in a lot of pain at the time of giving the first statement.
Following the reinvestigation the employee was informed of his suspension from work. His suspension letter alleged that the employee knowingly provided his employer with a false statement during their health and safety accident investigation.
During the disciplinary investigation the employee explained that, although he understood it was not a safe method of working, it was common practice for employees to climb on top of a pallet to change the radio, and that the radio had been there for about two years. He explained that his employer was aware of the practice. When the employee was asked why in his first statement he said he fell over a pallet, he stated that he could not really remember and that he had been in too much pain. The employee was informed that one of the witnesses had said that he was told what to say in his statement and that he agreed because he felt intimidated to do so. The employee denied this and confirmed that he could hardly talk at the time because of the pain and that he was heavily sedated with drugs and did not really read his statement before signing it.
The employee was dismissed for gross misconduct on the basis that he provided false information during the health and safety investigation and that he influenced other witnesses to provide a version of events in line with his initial false statement, in order to hide his unsafe actions in climbing onto the pallet. The employer was of the view that he was only forced to admit the cause of his broken ankle when he was shown the CCTV footage. The employee appealed the dismissal on the basis the sanction of dismissal was too severe. His appeal was rejected. He brought a claim for unfair dismissal.
The tribunal claim
On considering the evidence, the tribunal found that that it was untrue that the Claimant had created an alternative version of events which he only recognised as incorrect when the CCTV footage was reviewed. This is because the version of events which he had freely provided after giving his initial statement (prior to seeing the CCTV footage) mirrored almost exactly what was in the CCTV footage. However, little consideration was given to his subsequent evidence. The tribunal concluded that it was not reasonable for the employer to continue to rely on the Claimant’s initial statement regarding the incident where it was known he was in a lot of pain at the time of giving this, which may have distorted his recollection of events. The tribunal found that it was not reasonable to dismiss on the basis of the available evidence.