There has been a flurry of recent decisions concerning disciplinary and dismissal procedures. In this unfair dismissal update, we report on five recent employment tribunal and EAT decisions that reinforce the importance of clear policies that are properly communicated and applied and of carrying out a proper investigation into the facts, even where at first glance the case seems to be clear cut.
Summary dismissal for comments on Facebook was fair
An employment tribunal has found that an employee was fairly dismissed for gross misconduct when she posted inappropriate comments about customers on Facebook (Preece v JD Wetherspoons Plc). Miss Preece was a pub manager. Whilst on shift, she and another colleague had been subjected to verbal abuse from a group of customers. Later in the evening, while still at work, Miss Preece entered into a conversation with her friends on Facebook in which she made a number of abusive and inappropriate comments concerning the customers in question, identifying them by name. Her privacy settings meant that a wide audience, including the customers in question, could view her page. The customers' daughter complained to Wetherspoons about Miss Preece's comments and the company dismissed her for gross misconduct in accordance with its email and internet policy.
It was important to the employment tribunal’s decision that Miss Preece accepted she was aware of JD Wetherspoons email and internet policy and that she had acted in breach of an agreement she had signed to implement the policy. All employers should ensure that they have a detailed email/internet policy in place which deals with employees' use of blogging and social networking sites such as Facebook and which reserves to the employer the right to take disciplinary action in certain circumstances.
Unclear alcohol policy leads to unfair dismissal
In Liberty Living Ltd v Reid, the employer's unclear policies led to a finding of unfair dismissal. Liberty's disciplinary policy referred to "being under the influence of alcohol during working hours" as an example of gross misconduct warranting summary dismissal. Liberty also had a drugs and alcohol policy which stated that "consumption of alcohol or being under the influence of alcohol by any employee while performing company business or in the workplace is prohibited."
Mr Reid had left his workplace during the afternoon and had an alcoholic drink at a bar. Disciplinary proceedings were initiated, alleging that Mr Reid was "under the influence of alcohol during working hours". Mr Reid was provided with Liberty's disciplinary policy but did not receive a copy of the drugs and alcohol policy until after his dismissal. At the hearing the employer had created confusion by referring to both a prohibition against being “under the influence of alcohol” and against any “consumption of alcohol”.
Mr Reid was dismissed for gross misconduct. The EAT held that his dismissal was unfair. Liberty’s policies were confusing even to those tasked with upholding them. The EAT noted that not only was there contradiction between the drugs and alcohol policy and the disciplinary procedure, there was also confusion between what Mr Reid was told he was being charged with and the reason given for his dismissal.
Mistaken warning renders dismissal unfair
In Sakharkar v Northern Foods Grocery Group Ltd T/A Fox's Biscuits (NFGG), the EAT confirmed that a warning issued in error can render a subsequent dismissal unfair. Mr Sakharkar was dismissed for failing to meet attendance requirements during the currency of a third warning. Although not known to NFGG at the time of dismissal, the third warning had been given in error. The EAT held that Mr Sakharkar was unfairly dismissed. The EAT accepted he was dismissed for some other substantial reason but found that it was not reasonable for NFGG to treat that reason as sufficient to justify dismissal. NFGG had a prescriptive absence policy and, taking into account its administrative resources, care ought to have been taken to apply it correctly. NFGG's personnel department, in accordance with its policy, ought to have assisted the disciplinary officer in the application of the procedure.
Dismissal because of uncertain immigration status
In the recent case of Mrs Kurumuh v NHS Trust North Middlesex University Hospital, the EAT has held that, where an employee’s immigration status was uncertain, the employer had dismissed her for “some other substantial reason”. Before dismissing Mrs Kurumuh, the employer had carried out a proper investigation, made checks with the Border Agency and taken legal advice. The hospital had a genuine belief that Mrs Kurumuh did not have the right to work in the UK. However, the dismissal was unfair because of the absence of any proper procedure involving Mrs Kurumuh.
The employment tribunal had reduced the compensatory award to nil, applying the "Polkey" principle that a dismissal would have occurred in any event, even if the employer had followed a fair procedure. In relation to the compensation awarded, the Hospital conceded that it would have taken it a week to follow a proper procedure and therefore the EAT held Mrs Kurumuh's compensation should be adjusted from nil to one week's pay.
Use of surveillance film in disciplinary proceedings
In Pacey v Caterpillar Logistics Services (UK) Limited, Mr Pacey was dismissed from employment on the grounds that he had fraudulently claimed company sick pay for a period when he was not unfit for work.
While he was off sick due to a back injury sustained at work, Mr Pacey’s employer and its insurer became suspicious and arranged for him to be followed by an investigator. He was filmed over three days carrying out activities such as clearing ice from his car, driving his car; carrying a small shopping bag and taking his dog for a walk. Caterpillar dismissed Mr Pacey for gross misconduct on the basis of the private investigator’s report and video footage, notwithstanding evidence from his GP that he had been advised to take gentle back exercises, including walking and that the majority of the activities Mr Pacey had been seen doing were activities he could manage with his injury. The employment tribunal upheld his claim of unfair dismissal.
The employer in this case was not criticised for using video footage to support its claim. It was the way they had sought to rely on the evidence, without proper medical opinion that created the difficulties. It was significant that Mr Pacey's employer did not get its own medical advice on the surveillance tape notwithstanding its own occupational health doctor had seen Mr Pacey and accepted he was ill and unable to work.
Impact on employers
These cases on various aspects of unfair dismissal procedure provide a timely reminder to employers that:
- Both employers and employees will benefit from clearly drafted policies. The employee will know what is expected of them and the employer will be better placed to dismiss fairly if the policy is clear as to what amounts to unacceptable behaviour.
- Sanctions and examples of misconduct and gross misconduct referred to in policies (e.g. alcohol, e-mail and internet use, etc) should be consistent with those set out in the employer's disciplinary policy.
- Managers who carry out disciplinary hearings need to be familiar with the employer's policies so that the policy is properly and fairly applied.
- The disciplinary allegation needs to be carefully formulated and communicated and cannot usually be amended in the course of disciplinary proceedings. The reason given for dismissal needs to be consistent with the disciplinary allegation.
- If dismissal decisions rely on a previous warning, care needs to be taken to ensure that the previous warning was issued in good faith and in accordance with the employer's own procedure.
- Employment tribunals will take into account the administrative resources of an employer and the availability of Human Resources to assist and support managers in assessing the fairness of dismissals. If there is support available from HR, managers should avail themselves of it.
- An employer can dismiss an employee if it has a genuine belief after a reasonable investigation that there is a potentially fair reason for the dismissal, even if that subsequently turns out not to be the case (for example, as in Kurumuh above, a dismissal because the employer reasonably believes an employee is not entitled to work in the UK can be fair, even if it turns out that the employee is actually entitled to work in the UK).
- The requirement to carry out a reasonable investigation means that surveillance tapes alone will not usually justify dismissal of employees without further investigation. In particular, a high level of proof is required where an employer is dismissing on the grounds of dishonesty or theft.
- Even where video evidence suggests that an employee may not be as sick as they claim to be, it is necessary, in order for the employer's investigation to be reasonable, for the employer to carry out a proper investigation and seek medical advice. The employment tribunal in the Pacey case found it “completely incomprehensible” that the employer did not show the video to a medical expert prior to the dismissal.
- If a dismissal would have been fair had a proper procedure been followed, compensation can be reduced to the length of time it would have taken for the employer to follow the proper procedure.