Gross misconduct dismissal of lorry driver was unfair and race discrimination (Barnes v Robinsons of Worcester Aggregates Ltd)

In the case of Barnes v Robinsons of Worcester Aggregates Ltd 1301295/2017 the Employment Tribunal held that Mr Barnes had been unfairly dismissed and subjected to race discrimination when he was dismissed on allegations that he had driven dangerously.

The facts in Barnes v Robinsons of Worcester Aggregates Ltd

Mr Barnes, who is black Afro-Caribbean, commenced employment with Semex UK on 3 August 2014 and his employment transferred to Robinsons of Worcester Aggregates Ltd (“WAL”) as a lorry driver on 1 August 2013.

On 6 December 2016 Mr Barnes was delivering aggregates to Semex, Rugby – a run which he made every day, several times a day. There was an accident on this day, with a car driving into the side of Mr Barnes’ lorry. A video camera recorded Mr Barnes’ line of sight but did not capture the accident. The Semex depot was only a short distance away and Mr Barnes drove in, with a confrontation then ensuing between Mr Barnes and the driver of the other car. The foreman of the depot inspected the third-party vehicle and noted some damage, but he did not take a statement from the other driver as to what had occurred. He did, however, take a statement from Mr Barnes.

An investigation occurred into the accident, with Mr Robinson forming a mistaken view that Mr Barnes was aware of the presence of the other car before he started his manoeuvres prior to the accident occurring – this mistake was based on a mis-interpretation of Mr Barnes’ statement. Mrs Bellerby, the member of Human Resources responsible for advising on the investigation, was aware that Mr Robinson had a strong view that Mr Barnes was culpable for the accident. No written report was produced of the investigation and Mr Barnes was never asked to clarify ambiguities in his statement.

A disciplinary hearing took place on 3 January 2017 which Mr Aldridge, Mrs Bellerby, Mr Barnes, and Mr Ross (Mr Barnes’ trade union representative) attended. However, Mr Aldridge was too nervous to undertake the hearing and Mrs Bellerby in fact undertook it. The notes of the hearing were brief, given that the hearing was just over two hours in length. Mrs Bellerby made a decision at the end of the hearing that Mr Barnes should be dismissed for gross misconduct – this was based on two issues: 1) that she found that Mr Ross had admitted that Mr Barnes had gone through a red light (whereas in fact he had not admitted such); and 2) that Mr Barnes had admitted in his original statement that he was responsible for the crash (this, again, was based on a misinterpretation of Mr Barnes’ statement). During the meeting there was an adjournment, in which Mrs Bellerby called Mr Robinson (she stated that she discussed the case with him but did not remember specifics).

An appeal was then submitted by Mr Barnes on 10 January 2017, with Mr Barnes complaining that his dismissal was discriminatory and harsh. An appeal hearing was held and the appeal was rejected by WAL.

The decision of the Employment Tribunal in Barnes v Robinsons of Worcester Aggregates Ltd

The Employment Tribunal upheld Mr Barnes’ claims for unfair dismissal and direct race discrimination.

Unfair dismissal

The Tribunal found that the dismissal was unfair for the following reasons:

• A wholly inadequate investigation was undertaken;
• There were no grounds for believing that Mr Barnes was guilty of aggressive or dangerous driving;
• No reasonable employer would have rejected Mr Barnes’ explanation that he had checked his mirror, signalled, and established it was safe to move before he began his manoeuvre; and that no reasonable employer would have ignored the fact that at the time of the disciplinary and appeal hearings the third party’s insurers were admitting liability for the accident

Direct race discrimination

The Tribunal upheld Mr Barnes’ claims for direct race discrimination on the following grounds:

• Mr Barnes was the only black person employed by WAL – all of the other drivers were white, though not necessarily white British;
• That he had been dismissed by WAL after the accident; and
• That white lorry drivers (Mr Barnes and Mr Misca) and  were not dismissed in circumstances where there had been similar accidents

The Tribunal found that there were sufficient facts from which it could infer that discrimination could have been a reason for Mr Barnes’ dismissal, and found that there was no reasonable alternative explanation for his dismissal.

Our solicitors’ view on Barnes v Robinsons of Worcester Aggregates Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must take care to ensure that disciplinary processes are followed properly and fairly, as a failure to do so (as in this case) may not only render a dismissal unfair but discriminatory.”

The judgment of the Employment Tribunal can be found here.