Dismissed for reversing a loading shovel into a customer lorry: unfair because of flawed appeal
A multi-skilled operative was unfairly dismissed after a collision with a customer lorry that had entered the yard without permission. The tribunal found the appeal process was procedurally unfair and closed-minded.
1 min read · Last updated 18 May 2026
Case details
- #loading-shovel-collision
- #customer-lorry-unauthorised
- #health-and-safety
- #cctv-evidence
- #appeal-procedural-unfairness
- #mitigating-circumstances
Key facts
- The claimant reversed a loading shovel into a customer's lorry on 19 March 2020.
- The lorry driver entered the yard without authorisation, contrary to site rules.
- The claimant had a clean disciplinary record and was remorseful.
- The respondent dismissed the claimant for gross misconduct.
- The appeal hearing was conducted via Skype with audio issues and a closed-minded approach.
- The tribunal found the dismissal was outside the band of reasonable responses.
Timeline
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Employment start
Claimant commenced employment as a Multi-Skilled Operative.
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Collision incident
Claimant reversed a loading shovel into a customer lorry that had entered the yard without authorisation.
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Lorry driver statement
The lorry driver provided a written statement admitting he entered the yard without permission.
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Investigation follow-up call
Mr Beard telephoned the claimant to ask follow-up questions.
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Investigation report
Mr Beard produced an investigation report recommending a disciplinary hearing.
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Disciplinary hearing
Mr Barker conducted a disciplinary hearing via Skype; the claimant was not expecting dismissal.
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Dismissal
Mr Barker summarily dismissed the claimant for gross misconduct.
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Appeal hearing
Mr Luxon heard the appeal via Skype; parts were inaudible and he refused to allow a witness.
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Appeal outcome
Mr Luxon upheld the dismissal.
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Tribunal hearing day 1
First day of the employment tribunal hearing.
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Tribunal hearing day 2
Second day of the employment tribunal hearing.
The legal issue
The tribunal had to decide whether the employer acted reasonably in dismissing the claimant for gross misconduct, considering the investigation, the disciplinary hearing, and the appeal process, and whether the decision to dismiss fell within the range of reasonable responses a reasonable employer might have adopted.
The outcome
The tribunal upheld the complaint of unfair dismissal.
Key reasons:
- The initial investigation and disciplinary hearing were within the band of reasonable responses.
- However, the appeal hearing was procedurally unfair: it was conducted via Skype with significant audio issues, and the appeal officer refused to allow a witness to give evidence, showing a closed mind.
- The appeal process therefore rendered the overall dismissal unfair.
No compensation was awarded at this stage (the judgment dealt only with liability).
Lessons & takeaways
- A fair appeal process is essential — even if the initial decision was reasonable, a flawed appeal can make the entire dismissal unfair.
- Employers should ensure that remote hearings are fully audible and that any technical issues are resolved before proceeding.
- Refusing a witness without good reason, especially when their evidence is relevant, is a red flag for tribunals.
- A clean disciplinary record and remorse are mitigating factors that should be considered when deciding on a sanction.
A collision with consequences
In March 2020, a multi-skilled operative at Cemex UK Operations Limited reversed a loading shovel into a customer's lorry. The lorry driver had entered the yard without authorisation, contrary to site rules. The claimant had a clean disciplinary record and was immediately remorseful. Despite this, Cemex dismissed him for gross misconduct.
The tribunal found that the initial investigation and disciplinary hearing were reasonable. The dismissing officer genuinely believed the claimant had committed gross misconduct, and a reasonable employer could have reached the same conclusion. So far, so fair.
Where the process went wrong
The problem lay in the appeal. The appeal hearing was conducted via Skype, but parts of the hearing were inaudible due to audio issues. The appeal officer, Mr Luxon, refused to allow a witness to give evidence — a witness who could have supported the claimant's account. The tribunal concluded that Mr Luxon had approached the appeal with a closed mind, failing to consider the claimant's points properly.
This procedural unfairness was fatal. Even though the original decision was within the band of reasonable responses, the flawed appeal meant the dismissal as a whole was unfair. The case is a reminder that employers cannot treat the appeal as a rubber-stamping exercise.
What this means for similar claims
For employees, this case shows that a fair appeal can be just as important as a fair initial hearing. For employers, it highlights the need to conduct appeals properly — especially when using remote technology. Audio problems should be resolved, and witnesses should not be refused without good reason. A closed-minded appeal can undo an otherwise reasonable dismissal.
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