HGV driver dismissed for fight after being spat on: unfair dismissal but compensation slashed
An HGV driver with six years' service was unfairly dismissed by DHL after a physical altercation with a colleague, but his compensation was reduced by 85% for the likelihood he would have been dismissed anyway and by 50% for his own conduct.
2 min read · Last updated 18 May 2026
Case details
- #physical-altercation
- #gross-misconduct
- #mobile-phone-while-driving
- #hard-shoulder-stop
- #polkey-deduction
- #contributory-conduct
Key facts
- The claimant was employed from 4 January 2016 to 15 February 2022 as an HGV driver.
- On 17 January 2022, the claimant and a colleague AT had a physical altercation after a work meeting.
- The claimant made a mobile phone call while driving, breaching company policy.
- The claimant stopped on the hard shoulder of a motorway after being spat on by AT.
- The respondent dismissed the claimant for gross misconduct, including fighting and threatening behaviour.
- The tribunal found the dismissal unfair due to procedural failings but applied an 85% Polkey reduction and 50% contributory conduct deduction.
Timeline
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Employment started
Claimant began employment as a driver's mate, later becoming a van driver and then an HGV driver.
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Asked to support AT
Managers asked the claimant to offer support to AT as First Line Manager of Gatwick depot.
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AT resigns as manager
AT sent a WhatsApp message resigning as manager and stating the claimant would be in charge.
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Incident day
Claimant drove AT to a meeting in Enfield; on return journey AT spat on claimant, claimant stopped on hard shoulder, later at Gatwick AT punched and headlocked claimant.
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Suspension
Claimant was suspended pending investigation into the incident.
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Investigation meeting
Investigation meeting held with WM; claimant attended without representative.
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Disciplinary hearing (first day)
Disciplinary hearing conducted by Ms Hack; claimant represented by union rep.
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Disciplinary hearing reconvened
Ms Hack read prepared statement dismissing claimant summarily for gross misconduct.
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Dismissal confirmed
Claimant received outcome letter confirming dismissal.
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Appeal hearing
Appeal hearing conducted by Mr Bailey; claimant represented by union rep.
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Appeal dismissed
Mr Bailey informed claimant appeal not upheld.
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Tribunal hearing
Substantive hearing before Employment Judge Krepski.
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Judgment issued
Reserved judgment finding unfair dismissal but applying Polkey and contributory deductions.
The legal issue
The tribunal had to decide whether the claimant was unfairly dismissed for gross misconduct following a fight with a colleague, and what compensation should be awarded considering the likelihood of dismissal had a fair procedure been followed and the claimant's own contributory fault.
The outcome
The tribunal found that DHL unfairly dismissed the claimant because the disciplinary process was procedurally flawed. However, it also found that even with a fair process, there was an 85% chance the claimant would have been dismissed anyway due to the seriousness of his conduct, including making a phone call while driving and fighting. Additionally, the claimant's own actions contributed 50% to his dismissal.
Compensation:
- Basic award: £1,998.50
- Compensatory award: £2,594.88
- Total: £4,593.38
Lessons & takeaways
- Procedural errors can make a dismissal unfair even if the employee was at fault, but compensation may be heavily reduced if the outcome would have been the same.
- Employees who engage in physical altercations or breach safety policies like using a phone while driving risk significant reductions in compensation.
- Tribunals will consider the likelihood of dismissal under a fair procedure (Polkey reduction) and the employee's own blame (contributory conduct) when calculating awards.
- Having a union representative present at disciplinary hearings is important, but it does not guarantee a fair process if the employer fails to consider all evidence.
A workplace fight with a colleague
This case shows how a physical altercation between two employees can lead to dismissal, but also how procedural mistakes by the employer can make that dismissal unfair. The claimant, an HGV driver with six years' service, was involved in a fight with a colleague, AT, after a work meeting. The incident began when AT spat on the claimant while they were driving, causing the claimant to stop on the hard shoulder. Later, at the depot, AT punched the claimant and put him in a headlock. The claimant also admitted making a phone call while driving, which breached company policy.
What the employer did wrong
DHL dismissed the claimant for gross misconduct, citing fighting, threatening behaviour, and using a mobile phone while driving. However, the tribunal found that the disciplinary process was flawed. The investigating officer did not interview a key witness, and the decision-maker failed to properly consider the claimant's version of events or the possibility that AT had provoked the fight. These procedural failings meant the dismissal was outside the range of reasonable responses and therefore unfair.
Why the compensation was reduced
Despite the unfairness, the tribunal applied two significant reductions. First, an 85% Polkey reduction because even with a fair procedure, the claimant would likely have been dismissed anyway given the seriousness of his conduct, especially the phone call while driving. Second, a 50% reduction for contributory conduct, as the claimant's own actions, including the phone call and the fight, contributed to his dismissal. The final award was just over £4,500.
What this means for similar claims
This case highlights that even when an employer gets the process wrong, the amount of compensation can be heavily reduced if the employee was partly to blame. Employees who are involved in physical altercations or breach safety rules should be aware that any award may be significantly cut. For employers, it is a reminder that a fair investigation and consideration of all evidence is essential to avoid a finding of unfair dismissal, even when the employee's conduct is serious.
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