Craig Waites v Bilfinger Salamis UK Ltd

In an unfair-dismissal appeal, an Employment Tribunal does not adopt an impermissible substitution approach merely because it finds that the employer was entitled to reach particular conclusions on the evidence. The question remains whether the employer had reasonable grounds for its decision.

A procedural omission at an internal appeal will not render a dismissal unfair where the employee has already addressed the substance of the later information and an opportunity for further comment could not have affected the appeal decision.

The claimant, a level 3 rope-access technician in the offshore energy sector, was dismissed for gross misconduct after a level 1 technician under his supervision worked at height without anchor points. The employer concluded that he had breached its Golden Rules and working-at-height procedure.

The Employment Tribunal dismissed his unfair-dismissal claim. It found that he had the relevant 2013 procedure, whose material provisions remained unchanged in later versions, and that the employer had reasonable grounds for its conclusion.

On appeal, the claimant alleged that the Tribunal had substituted its own view for that of the employer. He also alleged unfairness because the appeal manager obtained a technical authority's comments after the appeal hearing without inviting a further response.

1. Appeal dismissed. Neither ground disclosed an error of law in the Employment Tribunal’s dismissal of the unfair-dismissal claim.

2. The Tribunal had not substituted its own assessment for the employer’s. In the challenged passages, it repeatedly addressed whether the employer was entitled to reach its stated conclusions on the evidence, rather than independently deciding what sanction it would have imposed. Its conclusion that the employer had reasonable grounds to find gross misconduct was therefore a permissible assessment.

3. The employer’s earlier mistaken assumption that the claimant had access to its online procedures system did not establish that the Tribunal had erred. The appeal process established that he had received annual method statements, which clearly addressed the work in question and were referenced in the applicable permit to work.

4. The appeal manager’s post-hearing request for the technical authority’s views did not make the process unfair on the facts found. The claimant had already given his position on the allegations, including matters he did not dispute. The technical response contained nothing of substance on which he had not already commented. A further opportunity to respond would not have added material to the decision-making process. Any procedural failure therefore had no consequence.

5. The Employment Appeal Tribunal refused the appeal.

• Employment Appeal Tribunal: appeal dismissed: [2024] EAT 74.
• Employment Tribunal: the claimant’s unfair-dismissal claim was dismissed following a hearing in June 2021; judgment dated 27 August 2021 and sent to the parties on 1 September 2021.