Employment tribunal cases – dismissals following employee mistakes

Robert Shore: Hello, and welcome to the Brightmine podcast, formerly known as the XpertHR podcast. Brightmine is a leading provider of people data, analytics and insight, offering employment law expertise, comprehensive HR resources and reward data to meet every HR and organisational challenge and opportunity. You can find us any time of the day or night at www.brightmine.com.

My name is Robert Shore, and I am delighted to be joined today by my colleague, Susie Munro, who is a legal editor at Brightmine. Susie, hello

Susie Munro: Hi, Robert.

Robert Shore: We’re going to be discussing, aren’t we, a few cases with a common theme. They feature employees who have been dismissed for misconduct after making what they claim to be a mistake. Now, you might think that some of these mistakes aren’t very serious. Others, on the other hand, could have had serious consequences. We’ll be looking at how the employers dealt with these situations and then how that was subsequently viewed by the tribunals.

Right. So to get us underway, where shall we begin, Susie?

Mr P Glenholmes v Network Rail Infrastructure

Susie Munro: So, let’s start with a case called Glenholmes and Network Rail Infrastructure. So this was about an employee who was an untrained technician. So a safety-critical role, basically. And he’d drunk some Peruvian tea that he’d bought at a market stall. It was called ‘tea of the Incas’ and on the packet it had no list of ingredients, so it wasn’t clear what it actually was. So this was an employer that carried out routine drugs tests, and Mr Glenholmes tested positive for recent cocaine use. So he then worked out that the Peruvian tea that he had bought at the market and had been drinking did actually contain cocaine.

So, the employer had a zero-tolerance approach to the use of cocaine, and he was dismissed for gross misconduct.

Robert Shore: Okay. And then this case went to tribunal. And what did the tribunal say?

Susie Munro: So, the tribunal actually found that the dismissal was unfair but that was just because of some procedural errors. So just the employer had made some mistakes in the dismissal procedure. But the tribunal went on to completely reduce the compensation by 100% for the employee’s contributory conduct. So although it was an unfair dismissal, he didn’t get any compensation.

So, this was an employer that had a policy, a clear policy on misuse of drugs that was actually incorporated into the employee’s contract. And the tribunal recognised this, recognised that it was a safety-critical role, and it found that by drinking some South American tea without actually researching what it was first of all, this employee was wholly blameworthy for the failed drugs test.

So yeah, basically you can have a genuine zero-tolerance policy on something like this, as long as you publicise it. And it can be made part of employees’ contracts.

So, the tribunal found that it was irrelevant, really, whether Mr Glenholmes was aware that he’d drunk cocaine in his tea, and it was irrelevant that it didn’t actually lead to any safety incidents.

Robert Shore: Okay. And then could the employer have given him a warning instead?

Susie Munro: Yeah, that would have been an option open to the employer. I don’t know the exact details of their procedure, their policy on this. But yeah, presumably that would have been an alternative option that they could have taken. But it was also open to them just to dismiss him for a first offence in this situation.

So, the tribunal actually took into account that he had managed to identify that the tea had cocaine in it after he’d failed the test, and they thought that he should have done that before he drank it because he was in a safety-critical role and employees like that have a responsibility to make sure that their judgement isn’t impaired, even if that is accidentally.

Robert Shore: So drug testing you mentioned there. Can employers carry out routine drug tests? Is this open to all employers?

Susie Munro: So, there are obviously privacy and data protection issues around drug testing, ‘cause you’re looking at employees’ health data. So basically, the employer needs to be able to justify it. And it would generally only be justified on health and safety grounds. There may be some other situations where you’d be justified in routinely testing employees but normally it’s going to be a health and safety risk, and that has to outweigh the privacy and data protection concerns.

So that would be the case in this industry where we’re looking at safety on the railways, but it would be different for other jobs. So the kind of jobs that you or I do, for example. You can’t just require all employees to be tested as a matter of course.

Ms S Gritton v London Underground

Robert Shore: Okay. And in fact then, the next case that we’re going to talk about – we’re going underground for the next one – sort of has a similar responsibility…I mean, it’s a public-facing role, isn’t it? Instead of the overground network we’re now talking about the London Underground.

Susie Munro: So this is Gritton and London Underground. So another train-related case. This was a tube train driver who’d been employed by London Underground for over ten years. So, she had stopped her train at Holborn Station and actually opened the doors on the wrong side. So there was some confusion about what had actually happened but it seems that while trying to close the doors that had opened on the platform on the right side, she had actually opened the other doors as well. So, didn’t notice that this had happened and it wasn’t picked up on any CCTV, but a passenger actually reported it afterwards and said that doors had been open on the side next to the wall for around three seconds.

So, there is a process to follow when this happens. The driver is supposed to contact the service controller, and basically someone’s supposed to check that no one has fallen out of the train. But that didn’t happen in this case. She drove off after closing all the doors without that check being carried out. Luckily no one did fall off the train but you want to make sure that the procedures are followed just to double-check that.

So, she said that she’d been experiencing personal issues and that she’d actually panicked a little bit in the confusion. And she said that’s how it had happened. She brought a disability discrimination claim as well as an unfair dismissal claim.

Robert Shore: And so this went in front of the tribunal. And the tribunal decided what?

Susie Munro: So, it was accepted that she was disabled because of anxiety and depression. But the tribunal found that there wasn’t actually any evidence that this was connected to what had happened on that particular day. So her inability to concentrate on that day wasn’t because of her disability. So the disability discrimination claim wasn’t successful.

The dismissal was actually found to be unfair, but again it was because of procedural failures in the investigation and the disciplinary process generally. So I think there had been an occupational health report that had been carried out previously about her mental wellbeing, and this wasn’t referred to in the investigation. So the tribunal found that was a procedural error, and I think there were some other things as well. So it was actually an unfair dismissal, but again this was a case where compensation was reduced by 100% because of the employee’s conduct and also because the tribunal found that if the employer had carried out a fair procedure she would still have been dismissed.

Robert Shore: As you say, in both cases the employer has failed to follow a fair procedure. That’s what the tribunal has decided. But they haven’t had to pay compensation to the employee. So, what can employers take from this? How important is it to follow a fair procedure in a gross misconduct situation? [0:08:19.0]

Susie Munro: Yeah, so a tribunal can reduce compensation awarded for unfair dismissal if the employee’s conduct before the dismissal means that it’s just and equitable to make a reduction. So the tribunal looks at whether the employee’s conduct was blameworthy, and it decides how much it would be just and equitable to reduce the award by. And that can be up to 100%, the whole lot.

And there’s also what’s known as a Polkey reduction. So that’s where the tribunal decides that the dismissal was procedurally unfair but if the employer had followed a fair procedure they would still have dismissed the employee. So that can be a percentage reduction. So for example, it could be a reduction of 10% if the tribunal thinks that there was a 10% chance that they would still have been dismissed. And again, that’s up to 100% reduction. But basically, it’s not a risk that employers should be taking. You should always follow a fair procedure. As well as the compensation awarded, there’s going to be the time and money spent on defending a tribunal claim, which could be…sometimes it’s more significant than the actual compensation awarded. So you don’t want to take the risk and hope that a tribunal is going to reduce any compensation award, ‘cause it’s not often that that actually happens. So yeah, just follow a fair procedure. That is always the key thing.

Robert Shore: Yeah. So the fact that ultimately there’s no award doesn’t mean to say that it’s free for the employer. And also there’s the cost, I suppose, to the employee as well, or former employee, just in having to go through a process like that, and it’s possibly easier to have something that’s just a good, clear process first. [0:10:04.7]

Susie Munro: That’s going to be best for all parties pretty much all of the time. Just treat the employee fairly, and if it’s fair to dismiss them then yeah, you can go ahead and do that. You really want to avoid getting into a situation where you’ve ended up in the tribunal.

Mr N J M Doffou v Sainsbury’s Supermarkets

Robert Shore: Yeah. Well, after all that, let’s go shopping. Let’s go to Doffou and Sainsbury’s Supermarkets, I think the next case is.

Susie Munro: So, this is someone who’d been employed by Sainsbury’s for almost 20 years. So really long service. He was doing his shopping after a night shift and he was seen taking some bags for life without paying for them. You might think this is slightly less serious in terms of possible consequences to the previous case.

So he’d put his shopping through the self-checkout, he’d selected zero bags, and then he’d gone to pick some up to put his shopping in. And this was all caught on CCTV. So there was an investigation. He said that it was a mistake, that it was because of stress and tiredness and it hadn’t been intentional. But the decision was made to dismiss him without notice for gross misconduct. The employer said he’d acted dishonestly and they could no longer trust him.

Robert Shore: Okay. And what did the tribunal think about that? Did it agree?

Susie Munro: So, the decision is not really about whether the tribunal agreed. They just have to decide whether it was within the band of reasonable responses. So yeah, in this case the decision to dismiss him was found to be within the bound of reasonable responses. The tribunal basically saw that the employer had investigated it and there was no question that he had acted dishonestly. It was on the CCTV. They had taken into account his long service but still decided to dismiss him. So the tribunal found that it was a fair dismissal.

Robert Shore: Just looking at the facts there, it does look a bit harsh, doesn’t it, as a response, after 20 years of service? Obviously there’s a lot we don’t know.

Susie Munro: Yeah, exactly. We don’t know the full background. But we can say, ‘Yes, that seems a bit much, and maybe they could have given him a warning instead or even just dealt with it informally.’ So, sitting here we can have our own opinion about that, but the tribunal can’t do that. The tribunal can’t substitute its own kind of decision about what should have happened. All they can do is apply the unfair dismissal rules. So was a fair procedure carried out and was it fair to dismiss in all the circumstances? So that is about whether the employer’s response was in the range of reasonable responses that a reasonable employer might have had.

So if the employer has made it clear that any theft will be gross misconduct, it’s really hard for a tribunal to decide anything other than that this was a reasonable response, even if if, you know, might seem a little bit much.

Robert Shore: Yeah. But as you say, that’s not what the tribunal is for.

Susie Munro: Yeah.

Robert Shore: I think it’s time to go abroad. Let’s go to Amsterdam for the fourth and final case.

Susie Munro: So this is Fekete and Citibank. So this is a senior analyst in a compliance-related role for Citibank, and he put in an expenses claim about a business trip to Amsterdam. And he’d actually told a colleague before the trip that his partner was going to go with him. His expenses claim was rejected because it appeared that he was claiming for meals for two people, and it was the bank’s policy that you can’t claim for a partner’s meals.

So, things might have gone differently for him if he had just admitted that he’d made a mistake at an early stage. But that’s not what he did. There was an investigation and he maintained that he’d been on his own and that he was only claiming for food and drink that he had had himself. So this included a claim for a meal that included a pesto pasta and a Bolognese, and he was asked directly if this was a meal that he had shared with his partner, but he maintained he’d eaten both the dishes himself. And then he later admitted that this wasn’t true.

So, as with the other cases, he was dismissed for gross misconduct. But the employer actually pointed to not just the expenses claim as being the reason for dismissal. It was the repeated misrepresentations that he’d made during the investigation. They gave him opportunities to say, ‘Actually no, I got this wrong,’ and then if he’d done that it may well have taken a different route.

Robert Shore: So, what did the tribunal decide? And again here we know that there’s a limited number of things that the tribunal is thinking about.

Susie Munro: So, they’re looking at whether this was fair in the circumstances, and they decided that the bank’s decision was within the bound of reasonable responses. So even though it was his first disciplinary issue and it may have started with a genuine mistake, the tribunal accepted that the bank required honesty from its employees and it was a reasonable response to dismiss him.

Robert Shore: Yes. Okay, so we were going to look at some general lessons to be derived from these cases. How can we begin to summarise the take-away?

Susie Munro: Yeah. So these aren’t cases where the employee had previously received a warning. They’re all about summary dismissal for gross misconduct, and generally where the employers have had clear policies, for example that drug use, drug misuse or failure to follow safety procedures would be gross misconduct.

Robert Shore: Okay. And is there such a thing as a universal list of what can amount to gross misconduct? Is there a checklist for HR?

Susie Munro: There’s not a universal list. It’s really down to employers individually to decide for themselves what amounts to gross misconduct. And the important thing is that this is clearly set out. It can be in the employment contracts and/or in a disciplinary policy, but the important thing is that all employees know what will amount to gross misconduct. So it’s likely to be a list including things like theft, dishonesty, violence, all the main ones. But then there’s going to be things that are more specific to particular businesses. So say if you’re working with children there might be something about safeguarding.

But I think important, just because you’ve listed something as gross misconduct in a policy or a contract, it doesn’t automatically mean that a dismissal for that conduct will be fair. You still have to look at whether it’s reasonable in all the circumstances. But yeah, if an employer’s carried out a reasonable investigation, especially if they’ve got clear evidence of the employee’s breach of these rules, dismissal is likely to be within the bound of reasonable responses and therefore fair.

Robert Shore: But as you say, even in the case of something that might amount to gross misconduct, the employer doesn’t have to dismiss someone. A different approach could be taken.

Susie Munro: Yeah, you don’t have to dismiss in these circumstances. So you’ve got the option of dealing with minor misconduct informally, so maybe thinking of the bags for life case, that could have been dealt with informally. But then consistency is important. You’ve got to keep in mind the need to treat employees consistently. That’s going to go to whether a particular course of action is fair. In any case, you look at how similar cases have been dealt with by the employer before. And also, treating people consistently will also help to avoid any suggestion of discrimination.

It doesn’t have to be a dismissal. You could obviously go through the formal disciplinary procedure and give them a formal warning. I think importantly, even if there is a serious misconduct or a serious safety breach, you do still have to carry out an investigation and a fair dismissal procedure. You can then dismiss someone without notice but you can’t just go straight to dismissal, no matter how serious the incident seems to be.

Robert Shore: So Susie, thank you so much for that. I think some really useful pointers for employers dealing with these matters. There are, of course, lots of supporting materials on the Brightmine website, including Susie’s own writeup of these tribunal cases, and there will be a link to those in the show notes. And that’s all we have time for. So, until next time.