Dismissed for mishearing an instruction: a conduct case that failed to consider the possibility of misunderstanding
A purge and relight engineer with five years' service was unfairly dismissed after a dispute over whether he was told to return to a work site. The tribunal found the employer failed to consider the possibility of miscommunication and did not interview a key witness.
1 min read · Last updated 18 May 2026
Case details
- #gross-misconduct
- #failure-to-follow-instruction
- #miscommunication
- #acas-code-uplift
- #contributory-fault
- #procedural-unfairness
Key facts
- The claimant was dismissed for gross misconduct after failing to return to a work site following a phone call with his manager.
- The claimant believed he was not instructed to return, while the manager claimed he gave the instruction.
- The disciplinary officer dismissed the claimant after he conceded he may have misheard the instruction.
- The tribunal found the dismissal substantively unfair because the possibility of miscommunication was not considered.
- The respondent failed to interview a key witness (Sophie Cluksy) who could have corroborated the claimant's account.
Timeline
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Incident at Ludlow Avenue
Claimant and two other engineers were sent home from a job site. Manager Kenny Saving later called to ask them to return. Claimant did not return, believing he was not instructed to do so.
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Investigatory meeting
Kenny Saving held an accusatory meeting with the claimant, alleging he was doing private work and had disobeyed an instruction.
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Disciplinary hearing invitation
Claimant invited to disciplinary hearing on charges of incorrect timesheet recording, failure to follow instruction, and unofficial work.
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First disciplinary hearing
Hearing chaired by Trevor Lister. Claimant denied receiving instruction to return. Lister arranged to take a statement from another manager.
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Second disciplinary hearing and dismissal
Claimant, on advice from his union rep, stated he may have misheard the instruction. Lister immediately dismissed him for falsification of timesheets.
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Appeal lodged
Claimant appealed, citing no previous disciplinary record and alleging manager had asked him to do work outside his contract.
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Appeal hearing
Appeal chaired by SM. Appeal not upheld; dismissal confirmed.
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Tribunal hearing
Full merits hearing before Employment Judge Thompson.
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Judgment issued
Tribunal found unfair dismissal and breach of contract. Compensation to be determined at a remedy hearing.
The legal issue
Whether the employer acted reasonably in dismissing the claimant for gross misconduct when there was a genuine dispute about whether he was instructed to return to a work site, and whether the investigation was reasonable.
The outcome
The tribunal found that the claimant was unfairly dismissed for gross misconduct. The employer's investigation was flawed: it did not consider the possibility that the claimant had misheard the instruction, and it failed to interview a key witness (Sophie Cluksy) who could have supported the claimant's version of events. The dismissal was therefore outside the range of reasonable responses.
Compensation will be determined at a remedy hearing, but the tribunal has already made the following findings:
- A 15% uplift on the compensatory award for unreasonable failure to follow the ACAS Code of Practice.
- A 40% reduction for contributory fault.
- No Polkey reduction (i.e., no finding that the claimant would have been dismissed even with a fair process).
Lessons & takeaways
- If there is a genuine dispute about what was said, employers must consider the possibility of miscommunication before concluding misconduct.
- Failing to interview a witness who could corroborate the employee's account can make an investigation unreasonable.
- An employee's concession that they 'may have misheard' does not automatically justify dismissal; the employer must still weigh the evidence fairly.
- A 15% ACAS uplift can be applied if the employer unreasonably fails to follow the ACAS Code, for example by not allowing representation or not considering appeals properly.
When a phone call becomes a dismissal
A purge and relight engineer with five years' service was dismissed after a dispute over whether his manager told him to return to a work site. The engineer believed he was not instructed to return, while the manager claimed he gave the instruction. The tribunal found that the employer, Network Plus Services Limited, failed to consider the possibility of miscommunication and did not interview a key witness who could have supported the engineer's account.
What went wrong
The incident occurred on 30 August 2022, when the engineer and two colleagues were sent home from a job site. The manager later called to ask them to return, but the engineer did not return, believing he was not instructed to do so. The manager held an accusatory meeting the next day, and the engineer was later dismissed for gross misconduct, including alleged dishonesty. The disciplinary officer dismissed the engineer after he conceded he may have misheard the instruction. The tribunal found that the employer had not considered the possibility of miscommunication and had not interviewed Sophie Cluksy, a witness who could have corroborated the engineer's account.
Why the result matters
This case shows that employers must conduct a reasonable investigation before dismissing for misconduct. If there is a genuine dispute about what was said, the employer must consider the possibility of misunderstanding. Failing to interview a relevant witness can make the dismissal unfair. The tribunal also applied a 15% uplift for breaching the ACAS Code and a 40% reduction for contributory fault, but found no Polkey reduction, meaning the engineer would not have been dismissed even with a fair process.
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