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Employment Law Case Update: McKay v Network Rail Infrastructure Ltd. v Glasgow City Council

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When dealing with an employee who you believe is guilty of gross misconduct, it is imperative that an objective and thorough investigation is conducted. In the case of McKay v Network Rail Infrastructure Ltd, the dismissal of Mr McKay was upheld in tribunal due to the investigation carried out by Network Rail.

Mr McKay was employed from May 2005 until March 2018 as a crossing keeper, responsible for operating the warning lights and lowering the barriers at level crossings at Whyteleafe and Whyteleafe South stations.  Network Rail viewed the role as being safety critical and one that required a high level of trust. Crossing keepers must comply with Network Rail’s general signaling regulations that require crossing keepers to report any accidents or unusual incidents to operations control.

An incident occurred on 5 December 2017 where a member of the public reported that the crossing barrier had been lowered on to their car, damaging the side. Operations control contacted Mr McKay who said that an incident had occurred and described the incident in the same manner that was captured on CCTV. Mr McKay’s line manager, Mr Wilson, spoke with Mr McKay who again stated that there had been an incident. Mr McKay also stated that he had bumped the car with the barrier to teach it a lesson.

Mr McKay was suspended  and a full investigation was launched with Mr Wilson compiling evidence from different sources including the initial complaint, Mr McKay’s fatigue index score, a recording of the phone call between Mr McKay and the operations team and also the CCTV footage.

Following the investigation, it was felt that Mr McKay had a case to answer and was subject to disciplinary proceedings. He was accused of deliberately hitting a car and failing to follow the appropriate reporting procedure. Mr Shear-Smith undertook the disciplinary hearing and felt that, should the allegations be proven, these would be sufficient to amount to gross misconduct. The hearing took place on 12 January 2018 where during proceedings, Mr McKay stated that there had been a second incident on the morning of 5 December 2017. The hearing was adjourned to investigate the issue. There was no record of the other incident and Mr Shear-

Smith concluded that it was no different to the one that was already the subject of the disciplinary action.

Mr McKay was dismissed on grounds of gross misconduct without notice. He was given the right of appeal and appealed the decision, but was unsuccessful and the original decision to dismiss was upheld.

Mr McKay brought a claim of unfair dismissal. In order for the decision to dismiss to be fair, Network Rail had to show that the decision makers held a genuine belief that Mr McKay was guilty of the misconduct, there was reasonable grounds on which to sustain that belief and, at the stage that the belief was formed, they had carried out as much investigation into the matter as was reasonable.

The Employment Tribunal (ET) found that the decision to dismiss was fair. Network Rail had been able to show that there was a genuine held belief that Mr McKay was guilty and that the investigation carried out was thorough enough to sustain that belief. The ET held that the sanction to dismiss was within the band of reasonable responses, stating that Mr McKay’s role was “safety critical and he had demonstrated serious failings in that role.”

This case highlights the importance of an objective and thorough investigation into alleged misconduct. By completing a fair and reasonable investigation, Network Rail were able to show that the decision to dismiss was one that was fair in the circumstances.


This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.