When an employer is considering dismissing an employee for conduct issues, it must ensure that it has carried out a reasonable investigation, and then it must show that the decision to dismiss was in the band of reasonable responses open to it.
Where employers lose unfair dismissal claims at Tribunal, it is often because of failings in the investigation stage. This was perfectly demonstrated in the recent case of Smith v Teleperformance Limited, which all started with a miserly portion of chicken nuggets.
The issues at hand in the disciplinary were very narrow. The Claimant, who had just finished a long shift, went to the canteen and ordered chicken nuggets, chips and beans (with a pot of cheese on the side) – don’t mind if I do….. He was then presented with the meal, which contained just three chicken nuggets. The Claimant was not happy with this and rejected the meal – saying that he was not a kid and that if he wanted a happy meal he would go to McDonald’s. The Canteen Assistant, unhappy with the Claimant’s conduct in turning the nuggets away, made a complaint which was then investigated under the Respondent’s disciplinary policy.
Whilst the investigation in this case was a poor one, there are lots of good examples that employers can learn from to make sure that they don’t fall fowl of the same mistakes:
- The Respondent only took statements from the two Canteen Assistants and the Claimant.
- The Claimant referred to a lady with purple hair behind him in the queue, but the Respondent made no effort to ascertain who this was.
- There was a security guard nearby – he was not interviewed.
- There was a pool table by the canteen, no effort was made to see if anyone playing pool witnessed the incident.
- The canteen was accessed by swipe card, but the Respondent did not check the records to see who was in the canteen at the time.
Failure to question evidence:
- Canteen Assistant A alleged the Claimant swore, saying ‘I am not a f*****g kid’. Canteen Assistant B made no reference to swearing and the Claimant denied it. Rather than checking the inconsistency with Canteen Assistant B, the investigator concluded that the Claimant did swear and that Canteen Assistant B was too shy to refer to bad language.
- There was a dispute as to whether the Claimant ‘forcefully’ returned his meal, or simply slid it back. The investigator failed to ask sufficient questions to ascertain the level of aggression the Claimant applied when returning the meal.
- The Tribunal held that the Respondent acted unreasonably in relying on the limited statements that were taken, rather than taking additional steps to verify the detail.
Too much emphasis on demeanour and failure to consider Claimant’s evidence:
- The Canteen Assistants referred to the Claimant’s face going red as evidence of his rage. The Claimant explained that he had a medical condition which may have caused his face to colour, but this was not considered by the Respondent, who concluded that his face went red with anger.
The Employment Tribunal Judge was keen to emphasise the impact of a poor investigation, stating: ‘Given the Claimant’s livelihood was at stake, it was unreasonable to rely on the evidence presented without further enquiries being made’ and held that the shortfalls in the investigation rendered the dismissal unfair.
Other elements of unfairness
The finding of unfair dismissal did not rest solely on the investigation.
Other procedural unfairness
The Claimant’s invitation to the disciplinary hearing referred to:
‘Acting violently. Including fighting or physical assault, using rude and abusive language or behaving immorally or obscenely towards other employees or our clients and customers’.
The Tribunal concluded that the Claimant was not given sufficient information about the precise allegations against him, and that this too rendered the dismissal unfair. The Judge also criticised the categorisation of the allegations, which exaggerated the incident.
Too severe sanction
Another common mistake employers make is to determine that if someone has done something wrong, they should be dismissed. This is fundamentally wrong, and all disciplinary policies should include sanctions short of dismissal, including warnings or final written warnings.
The Judge was not satisfied that the allegations made against the Claimant were as serious as the Canteen Assistants suggested, and held that a reasonable employer would not have dismissed the Claimant in the circumstances.
Even if an employee has committed an act of gross misconduct, a poor investigation can result in a finding of unfair dismissal, which will come with side dishes of compensation and legal costs. Anyone investigating a disciplinary matter, or chairing a disciplinary hearing, needs to carefully apply their mind to what evidence may be available and what questions need to be asked to establish the facts of the case.
Talk to us!
Investigating and probing doesn’t come naturally to everyone, but its what we do every day! We encourage our clients to contact us at the start of an investigation, so we can work together to ensure that the investigation will stand the scrutiny of the Tribunal and, hopefully, avoid cases being brought altogether. In the long run, this approach should save time and money. If you need help with a disciplinary case, please do not hesitate to contact Paul, Neal, Vicky or Sarah on 0161 832 2500.