REWARD
After concerns were raised informally, an investigation was carried out, followed by a disciplinary hearing during which it was noted that the claimant’s “… inability to stay calm was limited”. The claimant was ultimately dismissed for gross misconduct and the way in which he behaved in the disciplinary hearing was noted as being a material factor in the decision. While the claimant appealed, the original decision was upheld. The claimant then brought claims for unfair dismissal, wrongful dismissal / notice pay and discrimination arising from a disability. The ET found that during the discussions with colleagues, while they were about work, the claimant conducted themselves in a forceful way. The medical evidence confirmed that his underlying stress and inability to manage uncertainty resulted in him behaving in this way with colleagues. The ET, therefore, concluded that the claimant was dismissed because of his behaviour which was linked to his disability. This meant that the discrimination arising from a disability claim was successful. The unfair dismissal claim was considered next by the ET. It found that the reason for dismissal was ‘conduct’ which is a potentially fair reason. It then had to decide whether the dismissal was fair in all the circumstances. Even though the investigating officer interviewed several witnesses, the ET didn’t accept that the investigation was thorough. This was because no further enquiries were made regarding the claimant’s mental health, despite concerns being raised about his state of mind by colleagues. At the disciplinary stage, and on appeal, there was again a failure to consider that the claimant’s disability could have affected his behaviour. The ET, consequently, didn’t accept that the decision to summarily dismiss was a sanction that was within the range of reasonable responses and so, the unfair dismissal claim was also successful. This meant that the wrongful dismissal claim also succeeded because the claimant was entitled to the notice pay that he hadn’t received when he was dismissed for gross misconduct. The case will now proceed to a remedy hearing for a decision on the amount of compensation the claimant is entitled to because of the ET’s findings. What we do know, however, is that in relation to the unfair dismissal claim there will be
an uplift of 10% to the award because of the respondent’s failure to follow the Advisory, Conciliation and Arbitration Service (Acas) Code of Practice on disciplinary and grievance procedures. When the claimant appealed the decision, the appeal chair decided to meet with the disciplining officer on two occasions without the claimant knowing and before the appeal hearing took place. The ACAS Code states that the appeal should be impartial. While the appeal chair wasn’t previously involved in the disciplinary process, the meetings held with the disciplinary chair meant that the appeal was no longer impartial. “The claimant was ultimately dismissed for gross misconduct and the way in which he behaved in the disciplinary hearing was noted as being a material factor in the decision” Employee unfairly dismissed for interfering with food use-by dates The ET, in the case of Ms R Lino v EG Group Ltd, was tasked with deciding whether the claimant, who crossed out the use-by dates on food, was unfairly dismissed. When a food safety check was carried out at the store where the claimant was the manager, several issues were identified. Containers were found with no labels showing when they had first been used, nor the use-by date; some containers had the use-by date entirely blocked out by a marker pen; and a sign was found which said “All ingredients are ready here!! Don’t take from the fridge”, with an arrow pointing down. Following an investigation, the claimant was invited to a disciplinary hearing. The allegation put to the claimant was “serious breach of food safety – specifically, failing to remove out of date food items from sale”. However, this hearing didn’t take place. When the claimant was invited to a rescheduled disciplinary, a different allegation was raised which was “serious
breach of food safety – specifically, failing to remove out of date food items from sale and amending dates fraudulently”. At the hearing, when asked any questions, the claimant answered, “no comment”. The claimant was dismissed for gross misconduct. The outcome letter referred to the original allegation “serious breach of food safety – specifically, failing to remove out of date food items from sale”. The respondent concluded that the expiry dates were crossed out by the claimant for personal gain because it would reduce ‘wastage’ so that the store’s figures, and the claimant as the manager, looked better. The claimant accepted that she had written the sign and drawn the black mark on the items but argued it was her way of showing other employees that the items should be thrown away. The ET, however, could not understand why the claimant would take the time to mark the products rather than just get rid of them, nor why it involved covering up the ‘use- by’ date. The ET found, therefore, that the respondent had a genuine belief that the claimant was guilty of a serious breach of food safety, by failing to remove out of date items from the store. But the ET held that the conclusion the respondent reached wasn’t the allegation that was investigated, nor the one put to the claimant. The allegation investigated was that the claimant had failed to remove out of date food items from sale, which was a serious breach of food safety. However, the finding, which was more serious than the allegation put to the claimant, was that she had crossed out the dates to reduce wastage on site for personal gain because it would improve the wastage figures of the store. The ET, therefore, held that the claimant had been unfairly dismissed. The ET went on to consider whether the claimant contributed to the dismissal because of her actions. By marking the items and obscuring the dates, the claimant created a safety risk because the products could have been used after the use-by dates had expired. The claimant’s conduct was, therefore, found to have caused and contributed to the dismissal and so the ET decided that the basic and compensatory award should be reduced by 100%. While the claimant was unfairly dismissed because the procedure followed was flawed, she didn’t receive any compensation because of her conduct. n
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| Professional in Payroll, Pensions and Reward |
Issue 102 | July - August 2024
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