In a decision document handed down on 5 September, employment judge Robin Broughton found that the dismissal in relation to an incident in July 2020 was “both procedurally and substantively unfair”.
As the claimant is not seeking re-engagement or reinstatement, the case will be sent for a hearing to determine remedy.
The case, heard in May 2022, centred on an incident in July 2020 where Mark Thornley, the claimant, allegedly climbed onto a ‘rave plate’ of a lorry to clean the reversing camera on the back of the lorry.
The rave plate is a safety mechanism, increasing the height one would have to climb to enter the back of a lorry and reducing the chance of a limb becoming trapped by the crushing mechanism.
When the rave plate is lowered, the final stage of the cycle where waste is squashed, it requires the operative to hold the compaction button down continuously, meaning they can check nobody is in danger.
Suspension
Upon seeing this CCTV of the incident, the council’s waste services team manager wrote to the claimant’s line manager saying suspension would be the best option as it would “send a very strong message”.
The email sent to the line manager added: “As you know, the feeling is that in the past management have gone so far then folded at the last hurdle, which is one of the reasons why staff do not report things.”
When asked by the judge to clarify this, the waste services team manager explained: “I was trying to change the culture so people would report things and they knew they would be dealt with.”
However, the judge said: “There was no evidence put before me that any efforts that had been made to communicate to staff that there was going to be a change in the culture and a change in the management approach towards health and safety.”
Investigation
During the investigation by the council, the claimant accepted that what he had been doing and how he had been operating the RCV was wrong.
However, the judge said while various risk assessments had been carried out “there had been no relevant risk assessment in place for cleaning the cameras and no equipment provided for the drivers to clean the cameras while out on the road”.
Ruling
In the judge’s ruling, they said it was “outside the band of reasonable responses, to have formed a belief that this behaviour amounted to misconduct certainly not serious misconduct”.
The judge added that the investigation adopted “a clearly partisan approach” which was “focused wholly on establishing the culpability of the claimant in order to send a message to staff. This agenda obscured the reasonableness [of] the whole process”.
Another noteworthy point includes the judge saying task and finish practises “may encourage, or incentivise the crew to work at a quicker rate” thus “increasing the chance of making mistakes”.
We defended our position in this case because we believe health and safety rules are important
- North West Leicestershire district council
Breaches
Mike Murphy, head of HR at North West Leicestershire district council, said: “Waste services is recognised as one of the highest safety risk areas of employment, which is why we take all cases of health and safety breaches very seriously. We defended our position in this case because we believe health and safety rules are important to ensure staff are safe at work and able to return home safely.
“One of the lessons from this case for the council is the need to emphasise to our staff that any breaches of the health and safety rules and practices when working on our refuse and recycling vehicles will be taken very seriously. Following the case we have reminded our staff of the importance of following safety rules, and that any breaches of health and safety could lead to dismissal.”
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