In Mr C Boxall v Network Rail Infrastructure Limited Mr Boxall was employed as a lubrication team leader from 1 November 2004. At or around the time of the incident, Mr Boxall had for some time had some personal issues. His sister was terminally ill, and he was her main carer.

Mr Boxall was accredited as a controller of site safety (COSS). He had been acting as a COSS for several years. He was also a team leader. Following a previous safety incident for which no action was taken against him, he had been required to re-train as a COSS, which had been completed the previous year or so.

The incident occurred in October 2019. Mr Boxall was the team leader of a team of four. He was the COSS on that day. As the COSS it was Mr Boxall’s responsibility to liaise with the two signallers who were managing the signal boxes for the up line and downline. He was responsible for communicating with the team which lines were blocked at the relevant times.

When one of the team members, Mr Sean Burton, went to cross the downline, a train came down causing a health and safety risk. He quickly got out of the way, but the incident could have led to very serious consequences.

Very shortly afterwards all of the team came off the tracks and ceased work. Immediately after the incident the claimant telephoned Mr Steve Willis his line manager. He said to Mr Willis that he was unfit to be COSS and referred to issues regarding his sister. He did not report the incident in question.

Mr Boxall agreed to meet with Willis the following day. NRI then commenced an investigation – first level one and then level two – which was “standard practice” for a potential health and safety incident.

The tribunal found the level two investigation report was not completed until 8 December 2020, and noted that “no explanation” was given for the delay.

The case progressed to a disciplinary investigation under Mr Watters, who interviewed Mr Boxall on 11 February 2021 – which the tribunal noted was one year and four months after the incident. In March, Mr Boxall raised a grievance about the duty of care to him, the stress the investigation caused him and the way the disciplinary process was managed.

In June, Mr Boxall received the outcome of his grievance, which was partially upheld in relation to the delay in the process and, while Mr Boxall appealed, NRI considered it related to the disciplinary process and continued with proceedings.

Mr Boxall was invited to a disciplinary hearing on 15 July, facing an allegation of gross misconduct and neglect of his COSS duties by incorrectly communicating a blocked line – for which he was dismissed. Mr Boxall appealed the decision, but it was unsuccessful.

The tribunal noted that Boxall was dismissed for “serious neglect” of his COSS duties, which could have resulted in “near-fatal consequences” for a team member, which “amounts to misconduct”.

Judge Martin said there was a four-month delay between the initial witness statements and the interviews with the witnesses, with “no explanation” for this, and that it took “almost a further year” for the disciplinary investigation. “That delay… was wholly unacceptable and made the investigation wholly unreasonable,” said Martin.

“This tribunal… does not consider that [NRI] acted fairly in dismissing [Boxall] following an investigation which took place almost 16 months after the initial incident.

However, Martin also found that Boxall was “partially responsible” for the incident, and, while not completely “blameworthy or culpable”, found that he “deliberately, as it now appears, did not report the incident”. He reduced his compensation by 25 per cent to £15,382.74.