Successfully representing unfairly dismissed road worker, employment judge scathing about employer

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Digby Brown’s Employment Solicitors represent people who have been unfairly treated at work. Our employment solicitors represented one of two hard-working employees of a large firm who had been particularly unfairly treated. 

In a scathing judgment, an Employment Judge found completely in favour of the employees.  This case is one which highlights the importance of having a specialist lawyer stand up for your rights at work and stands as an expensive lesson for this employer and any others who may be tempted to try and act in a similar way. .

Full details of the case are below:

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Mr N Fotheringham & Anor v BEAR Scotland Ltd


Mr Fotheringham worked for BEAR Scotland for over seven years as a Roadworker, undertaking various tasks under BEAR’s contract for the maintenance of Scotland’s trunk roads.  He was a model employee with an unblemished record and had held positions on his employer’s Joint Consultative Council and as an employee health and safety rep.  Mr Fotheringham worked as part of a two man team with a Mr Toshney.

In November 2013, Mr Fotheringham became aware of certain concerns from the workforce regarding management failings, that health and safety was being flouted and that employees were being asked to work too close to oncoming traffic.  As one of the issues related to middle management blocking concerns from being escalated and dealt with, he wrote an email to the company’s Managing Director.  Concerned by this report the Managing Director asked a Senior Operations Manager, Mr Ogg, to investigate.

Unfortunately for Mr Fotheringham, Mr Ogg was annoyed that such a report had been made to his boss.  Following a week of perceived poor performance, Mr Fotheringham and Mr Toshney were put on motorway litter picking duty.  Rather than meet with Mr Fotheringham to discuss the workers’ concerns, Mr Ogg covertly observed the two employees from various company vehicles with a view to “catching them out,” ostensibly in relation to their poor performance. 

In a move described by the Employment Judge as “hiding in the bushes,” Mr Ogg took hours out of his busy day to photograph the employees allegedly taking extended breaks for four days.  Mr Ogg compiled an investigation report, which he passed to BEAR’S Human Resources (HR) department to have investigated for possible disciplinary sanctions related to extended breaks and consequently claiming for more time than they actually worked.  BEAR’s Head of HR, who happens also to be Mr Ogg’s wife, instructed an investigation by a Mr Wright.

Mr Wright interviewed the two employees and put together a document to be passed, via HR, to the Disciplining Officer – a Mr Campbell.  By the time this document reached Mr Campbell, part of the evidence which showed the employees’ innocence had “vanished.”  Mr Campbell found the employees guilty of timesheet fraud and noted that he had “no option but to dismiss” them.  This was upheld on appeal.  Aggrieved and feeling that they had been set up, both Mr Fotheringham and Mr Toshney raised conjoined claims for unfair dismissal.  This was heard over six days in Dundee in early December 2014.

The unanimous decision of the Employment Tribunal was that both had been unfairly dismissed.  In a scathing judgment, the Employment Judge went to great lengths to point out more than a dozen glaring omissions and errors made by Mr Campbell.  Despite being described by the Employment Judge as “perhaps the best of the Respondents’ witnesses,” he was unable under cross-examination to explain his many failures and appeared in the mind of the Judge not to have even considered these issues “until these points were made to him forcibly” in cross-examination.

The Tribunal found Mr Wright to be “an extremely poor witness who did not “remember practically all of the salient details of the investigation he carried out.”  He appeared confused under cross examination and the Tribunal was therefore convinced that he “was simply passing on whatever he was given by Mr Ogg.”  Indeed BEAR’s witnesses were unable to point to anything other than Mr Ogg’s ‘investigation’ as support for their findings.  The Tribunal was troubled by this, given the accusation of a ‘witchhunt’ perpetrated by Mr Ogg.  The Tribunal found Mr Fotheringham and Mr Toshney to be both credible and reliable and preferred their evidence wherever it disagreed with that of BEAR’s witnesses.

The Tribunal found that the investigation in this case “fell very far short of the level of investigation which any reasonable employer would have carried out.”  It was “entirely outwith the band of reasonable responses.”  BEAR fell so far short of the level required, the Tribunal did not feel it required to comment on the veracity of the accusation of victimisation.  Instead, the Tribunal noted the employer’s lack of common sense, failure to investigate numerous salient issues and the unreasonable “vanishing” of evidence supporting the employees.

The Tribunal found that the decision to dismiss was based on a fatally flawed investigation, which all came back to the report by Mr Ogg.  The dismissals could not be fair.  However, even if Mr Ogg’s report showed what he wanted people to believe it showed, dismissal would not have been an appropriate sanction.  Accordingly they found in the Claimants’ favour.

Mr Fotheringham was to be commended for finding another job, and therefore mitigating his loss, within three months.  Contrary to BEAR’s opinion, he had done all he could to obtain work.  Mr Toshney was unfit to work between his dismissal and August 2014 – the Tribunal were convinced that this was linked to his dismissal.  Both were awarded the full compensation possible, despite BEAR’s contention that they had somehow contributed to their losses.  In total, the Claimants were awarded over £26,000. 

Combined with the cost of employing Counsel for a six day hearing, this is an expensive lesson for the employer and any others who may be tempted to try and act in this manner.

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