A tanker driver who accidentally spilled fuel over a forecourt has been awarded almost £23,000, along with his job back, by an employment tribunal.
East London employment tribunal heard Mr D Nolan started employment with XPO Bulk UK in August 2010 as a tanker driver delivering fuel to petrol and filling stations across the UK.
On a “dark and windy” night on 8 December 2015, Nolan arrived at the Tesco Chichester store and began the usual checks required to deliver fuel into two pots. An alarm sounded shortly after Nolan commenced filling the second pot.
Nolan investigated the alarm but did not find any warning lights on the driver controlled delivery (DCD) box. He discovered a blockage in a delivery hose and continued delivering fuel.
However, the alarm sounded again. Nolan gave evidence that the DCD box still did not display any warning indicator. He shut off the alarm and went to check his paperwork.
At this point, Nolan realised he had misread the ullage [the amount of space left in the tank], and he went to press the emergency stop button. This coincided with a Tesco garage staff member informing Nolan that fuel had spilled onto the forecourt.
Nolan told the Tesco employee to call the fire brigade, which is standard procedure when there is a fuel spillage.
The fire brigade “did not do anything other than inspect the scene, spread a little more sand and ensured that the clean-up had been satisfactorily dealt with”. Nolan also reported the incident to his employer.
The tanker driver attended a disciplinary hearing on 17 December, where it was alleged his actions had brought the company into “disrepute”. He was dismissed with notice.
Nolan appealed unsuccessfully against his dismissal, and tribunal proceedings began in 2018.
Court documents showed that XPO Bulk had been previously warned by Tesco staff that there was a possible sensor fault in the tank in question. However, Nolan had not been informed of this before the delivery.
Although the tribunal regarded Nolan’s conduct as “culpable or blameworthy”, it decided his dismissal was “substantively unfair as he would not have been dismissed by a reasonable employer for the misreading of the ullage”.
Employment judge Tobin ruled that Nolan was unfairly dismissed by his former employer and ordered he be reinstated to his previous role, as per Nolan’s request. The tribunal also awarded him £22,805.18 in loss of earnings, loss of pensions and expenses while looking for alternative employment.
Susan Doris-Obando, counsel barrister at Dentons, explained that reinstatement orders are “exceedingly rare”.
“Ultimately, the tribunal cannot force an employer to reinstate or re-engage an employee, but the repercussions for failing to do so are financial,” Doris-Obando told People Management.
Melanie Stancliffe, employment partner at Irwin Mitchell, added that employers cannot refuse reinstatement orders “simply because they have appointed someone else to the role”.
“They will need to demonstrate that the only way they could provide cover was to engage a permanent replacement,” Stancliffe said. “Even if they can do this, the tribunal will then have to consider if the employee can be re-engaged in another role.”
Andrew Willis, head of legal at CIPD HR-inform, advised employers to view reinstated employees as “new starters and wipe the slate clean”.
“Line managers responsible for the employee should be reminded that the future working relationship should be treated positively, and the employee should not be subjected to any unfavourable treatment because they have brought a tribunal claim previously,” Willis said.
He added there was “always a possibility” of future difficulties if the employee perceived any negative treatment to be connected to their previous claim. He warned employers to clearly communicate any decisions and decision-making processes recorded.
XPO has been contacted for comment. Nolan could not be reached for comment.