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Drunk firefighters sacked for urinating on the floor of a Chinese takeaway and racially abusing staff have won their unfair dismissal claims - why?
Here’s an interesting case that has recently been reported. Those reading the headlines will wonder why the dismissal was unfair given that the allegations were so serious and some of it was caught on CCTV.
Background
This case involves two firefighters, Gareth Hancock and Daniel Phillips, who were dismissed by the South Wales Fire and Rescue Service for gross misconduct following an incident at a Chinese takeaway in June 2023. Both men challenged their dismissals in the Employment Tribunal, claiming that they were unfairly dismissed.
The incident at the centre of this case took place on the night of June 2, 2023. Hancock and Phillips, along with two other colleagues, had been drinking before visiting a Chinese takeaway. It was alleged that Hancock, while heavily intoxicated, urinated on the takeaway floor, made racist comments, and tried to start a fight. Phillips, though not directly accused of misconduct like Hancock, was said to have witnessed these events without intervening and even laughed at Hancock’s behaviour.
Upon receiving complaints from the takeaway owners, the fire service suspended the men and conducted an internal investigation. Hancock and Phillips were subsequently dismissed for gross misconduct. Both men argued that the investigation and dismissal process were flawed, and that they had been treated unfairly compared to other colleagues involved in the incident. Their claims of unfair dismissal were consolidated and heard together by the Tribunal.
The Tribunal reviewed the fire service's investigation process, including witness testimonies and CCTV footage, which lacked audio but visually documented the men’s presence in the takeaway for around 22 minutes. Both Hancock and Phillips admitted to being intoxicated, with Hancock having consumed approximately eight pints and Phillips six or seven. Importantly, Phillips’ role in the dismissal was based not on any direct misconduct but on his failure to intervene in Hancock’s actions.
The Employment Tribunal found significant flaws in the disciplinary process. One of the main issues was the fact that the cases of all four firefighters involved in the incident were heard and decided sequentially rather than together. This meant that findings in one case, particularly about what others witnessed or didn’t witness, were not fully considered in the others. For example, by the time Phillips’ case was heard, the panel had already determined that Hancock had committed the acts of misconduct, making it more difficult for Phillips to argue that he hadn’t witnessed or been aware of what was happening.
Another issue was the lack of reasoning provided by the disciplinary panels in their decisions. Neither Hancock nor Phillips was given a clear explanation of why their accounts were rejected, nor was there adequate consideration of inconsistencies in the evidence. This lack of transparency contributed to the Tribunal’s finding that the dismissal process was procedurally unfair.
Despite the misconduct involved, the Tribunal concluded that both Hancock and Phillips had been unfairly dismissed. This does not mean that the Tribunal made any determination on whether the men were innocent of the allegations. Instead, the ruling was based on the fact that the fire service had not followed a fair process in handling the dismissals, including inadequate investigations, sequential hearings that prejudiced the decisions, and a lack of clear reasoning for the dismissals.
So, what about their compensation?
It’s important to note that although Hancock and Phillips won their claims of unfair dismissal, the Tribunal could still reduce their compensation if it is found that they contributed to their own misfortune.
In employment law, this is known as “contributory fault.” Given their involvement in the incident, particularly Hancock’s drunken behaviour and Phillips' failure to intervene, it is likely that any compensation awarded to them may be reduced. The Tribunal acknowledged that there were serious allegations against the men, and their conduct could affect the final remedy decision in terms of how much compensation, if any, they receive.
While both firefighters succeeded in their claims of unfair dismissal due to flaws in the disciplinary process, the extent of their compensation may be limited given the circumstances of their involvement in the events leading to their dismissal. It will be interesting to see…..
You can read the full judgment of the tribunal here.
Q&As
Q. I am contracted 40 hours, only working 32-34 hours per week just now due to lack of work. Should they be paying us 40 hours?
A. Yes, if your contract specifies that you are contracted to work 40 hours per week, your employer should be paying you for those 40 hours, even if they are currently only giving you for 32–34 hours due to a lack of work.
In situations where there’s a reduction in work, your employer is still obligated to meet the terms of the contract unless they have consulted with you and agreed to change it. Reducing your hours and pay without agreement could potentially be a breach of contract. Sometimes, employers may offer short-time working arrangements during slow periods, but this requires your consent unless it’s already stipulated in your contract.
If your employer wishes to change your contracted hours or pay, they must follow the proper process, including consultation and obtaining your agreement. However, if they haven't done this and you're not being paid your full contracted hours, it's worth raising this with them.
Remember - you’re entitled to receive your normal contracted pay unless there's a formal arrangement to the contrary.
Q. I’ve found out my employer hasn’t registered PAYE and not paid any of the taxes or NI but has made deductions , what do I do? p.s not received any payslips either.
A. This is a serious issue. If your employer has been deducting tax and National Insurance (NI) contributions from your wages but hasn't registered for PAYE or passed those deductions on to HMRC. Employers are legally required to register for PAYE if they are deducting tax and NI from their employees' wages, and they must provide payslips showing those deductions.
I suggest you start by discussing the situation with your employer. Ask for payslips and clarification about why PAYE hasn’t been registered or contributions haven't been paid. They might claim it’s an oversight, but regardless of their explanation, they need to rectify this immediately.
You can log into your personal tax account via the HMRC website to see what information they have on your employment and tax deductions. If your employer hasn’t registered PAYE, it’s likely HMRC won’t have a record of your deductions either.
If your employer doesn't resolve the issue, you can report them to HMRC. They take matters of tax evasion seriously, and failure to pay tax and NI contributions could amount to fraud. You can report your employer anonymously if you prefer. HMRC will investigate the situation.
By law, you are entitled to receive a payslip either on or before your payday. If you’ve never received one, this is also a breach of your rights. You should request your payslips in writing, and if your employer refuses or continues not to provide them, you can make a claim through an employment tribunal.
Missing NI contributions could affect your future entitlements, such as the State Pension. If your employer hasn't been paying your contributions, again contact HMRC so they can help you ensure your NI record is accurate.
It’s important to address this issue quickly, as failing to do so could affect both your tax position and future benefits.
Q. we have 29 days holiday a year but they take ten of us for bank holidays is this right ??
A. Yes, it is legal for your employer to include bank holidays as part of your total holiday entitlement, but whether it's "right" depends on how your contract is set up.
Employees are entitled to a minimum of 5.6 weeks of paid holiday per year, which equals 28 days for someone working a five-day week. Employers can count the 8 public or bank holidays towards this entitlement if they choose. In your case, your employer gives you 29 days in total, which is 1 day more than the statutory minimum, so they are actually offering slightly more than the legal requirement.
When your employer "takes" 10 days for bank holidays, it sounds like 8 of these are the usual public holidays, and the extra 2 may be additional fixed holiday days that they require you to take. If your contract specifies that your holiday entitlement includes public holidays and other fixed days, this practice is allowed.
However, if you want more flexibility with your remaining days, you could check with your employer if there's room to negotiate how many of the 29 days are fixed for bank holidays and how many you can take at your discretion.
Useful Links
The legal bit. . .
Wow, this was a super interesting read Tim! Loved what you said about the holiday leave. I’m American but I thought it was super interesting to know how employment is here compared to the rest of the world. 5.6 weeks sounds pretty awesome! I don’t think we get that here, but I have been at some jobs where you can negotiate it. Just gotta work at a sweet company lol. 💪💪💪💪💪💪💪💪💪💪💪💪💪💪