“Inconsistent” injury story sees compensation slashed

Thursday 18 June 2020

A construction worker’s unfair dismissal compensation was slashed by nearly £5,000 by a Tribunal after it found he changed his story about an injury he suffered at work.

Detailed in a written judgment, the dispute between Anthony Lelliott and his former employer, NJD Asphalt, was considered by the Employment and Discrimination Tribunal.

Mr Lelliott successfully convinced the Tribunal he had been unfairly dismissed from his post following a dispute about an injury he claimed to suffer at work, but his claims that the reason for his dismissal was wrong and the allegation that NJD didn’t provide pay statements were overruled. 

The judgment explains that Mr Lelliott was employed as a driver and labourer for the company, who had been sub-contracted by Ronez/Pallot Tarmac to assist on a resurfacing job. 

Pictured: The case was considered by the Employment and Discrimination Tribunal.

Initially, he said he injured his back whilst using a mechanical roller, and that he informed the site foreman of this injury.

A few days later, an incident report was filed, indicating that Mr Lelliott was using the roller machine when “he felt a sharp pain in his back.” The incident report concluded that “there is no firm evidence” that the injury took place at work because of the “time lapse of reporting the event” and the fact that Mr Lelliott was back at work the day after the alleged injury. 

Following this meeting, Mr Lelliott went to his doctor and was signed off work, with the reason stated on the medical certificate being “thigh pain/injury”. 

Upon returning to work, NJD conducted their own accident investigation where Mr Lelliott insisted that the injury was to his thigh, not his back. 

When NJD invoiced Pallot for Mr Lelliott’s time off, they refused to pay as their investigation had concluded there wasn’t any evidence of the injury having been sustained at work.

They also pointed out that the injury referred to by Mr Lelliott a few days after the incident “was to his back not to his thigh”. Pallot were said to be “astounded by the reference to an alleged thigh injury as that was inconsistent with the version of events given to them”.

After comparing the Pallot report with their own, Managing Director of NJD, Nicholas Daley called a meeting with Mr Lelliott. Following this meeting where Mr Lelliott apparently

The Tribunal found the minutes of this meeting to “reveal an incoherent, confusing, contradictory, perverse, and inconsistent version of events presented” by Mr Lelliott. 

Faced with these responses, Mr Daley concluded that Mr Lelliott was “misleading or lying to him” and felt this “amounted to gross misconduct.” Mr Lelliott was therefore dismissed without notice.

In light of all the evidence he heard, Deputy Chair of the Tribunal Advocate Fraser Robertson concluded that Mr Lelliott hadn’t reported the injury in the manner he described and that way he reported it did not follow the terms of the construction site.

Pictured: The Tribunal found that the labourer was entitled to compensation.

Whilst the claimant said the doctor had told him he had injured his thigh, the Deputy Chair rather found that “it was the Claimant who informed his doctor that he had injured his thigh.”

Despite this, the Tribunal found that NJD had not followed the correct procedures in dismissing Mr Lelliott and had “failed entirely to conduct a fair disciplinary or dismissal hearing." 

Advocate Robertson stated: “The evidence of Mr Daley himself showed that [NJD’s] decision to dismiss the claimant was taking somewhat in the ‘heat of the moment’ at the end of the meeting and against a background of exasperation at [Mr Lelliott’s] failure to provide a cogent and consistent version of events.” 

Whilst the Tribunal found that NJD had a “genuine belief” that Mr Lelliott’s behaviour amounted to gross misconduct, “this belief was not formed on the basis of a reasonable investigation.” 

It was therefore found that Mr Lelliott’s claim for unfair dismissal was successful. He was entitled to an award of £6,636, but the Tribunal made a 75% reduction due to the contribution Mr Lelliott’s behaviour made to his own dismissal. 

NJD was then ordered to pay £1,659 in compensation to Mr Lelliott. 

The labourer’s claims for wrongful dismissal and NJD’s failure to provide pay statements were not successful.